Controversial NLRB notice posting rule vacated on appeal

The D.C. Circuit has vacated a controversial NLRB rule requiring employers to notify employees of their rights under the NLRA, upholding a challenge brought by several employer groups (National Association of Manufacturers v NLRB, May 7, 2013, Randolph, A). Rather than ruling on the NLRB’s authority under NLRA Sec. 6 to promulgate the posting rule, as argued by the parties, the appeals court concluded that the rule violated employers’ free speech rights as protected by Sec. 8(c) of the Act.

Posting rule. The rule declared that it is an unfair labor practice for an employer to fail to post the notice—that is, it “may be found to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by NLRA Sec. 7.” Two additional enforcement devices contained in the rule included that the Board could suspend the running of the six-month limitations period for filing any unfair labor practice charge, and the Board may consider an employer’s “knowing and willful refusal to post the notice as evidence of unlawful motive.”

On cross-motions for summary judgment, a district court found that the NLRB had the authority under Sec. 6 to promulgate the posting rule, determined that the rule was reasonably related to the purposes of the Act, and upheld the overall validity of the NLRB rule.

Although the parties devoted large parts of their briefs to the question of whether Sec. 6 gave the Board authority to promulgate its posting rule, the D.C. Circuit focused its analysis on Sec. 8(c), the NLRA’s free speech provision. The appeals court observed that although Sec. 8(c) precludes the Board from finding noncoercive employer speech to be an unfair labor practice, or evidence of an unfair labor practice, the Board’s rule does both. Under the rule, an employer’s failure to post the required notice constitutes an unfair labor practice. Moreover, the Board may consider an employer’s “knowing and willful” noncompliance to be evidence of antiunion animus in cases in which unlawful motive is an element of an unfair labor practice.

Compelled speech. Plaintiffs here, like those in other compelled-speech cases, objected to the message the government ordered them to publish on their premises. They see the poster as one-sided, as favoring unionization, because it “fails to notify employees, inter alia, of their rights to decertify a union, to refuse to pay dues to a union in a right-to-work state, and to object to payment of dues in excess of the amounts required for representational purposes.”

At this juncture, the appeals court posed the question: How can it be an unfair labor practice for an employer to refuse to post a government notice informing employees of their right to unionize (or to refuse to)? Like the freedom of speech guaranteed in the First Amendment, Sec. 8(c) necessarily protects—as against the Board—the right of employers (and unions) not to speak. The Board rule violated Sec. 8(c) because it makes an employer’s failure to post the Board’s notice an unfair labor practice, and because it treats such a failure as evidence of anti-union animus in cases involving unlawfully motivated firings or refusals to hire. Consequently, the Board’s posting rule was vacated.